Legal report: Bigger is better for labour and employment law boutiques

By
Canadian Lawyer

07 Aug 2007

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More depth and a broader talent pool give larger-than-average specialty firms an advantage in this area of the law.

When you talk to lawyers who work in a boutique, you will always hear them boasting about the advantages of being small. When you talk to lawyers at a labour and employment (L & E) boutique, you’ll hear a great deal of boasting about being big. Almost all the major boutiques are the biggest in their region, with active plans to grow and grow.

Everyone knows the benefits of being a smaller-size firm: lower overheads, less hierarchy, the ease of consensus, and the lack of conflict. Boutiques add the competitive advantages of specialization. However, with labour and employment law, if they are specialized enough, it doesn’t seem to matter how big the firms get, they retain all those advantages.

The biggest L & E boutique in Canada is Hicks Morley Hamilton Stewart Storie LLP of Ontario. It started with seven lawyers, but now has 95 lawyers in five locations across the province. While some lawyers question whether Hicks Morley can still call itself a boutique, managing partner Stephen Shamie has no doubts. “We are certainly not a full-service firm. We are specialized in anything relating to labour and employment.”

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Eric Harris, of Harris & Company in Vancouver, believes it is the nature of the work that distinguishes L & E boutiques from other legal boutiques. “Occasionally, a very, very serious case comes up that requires as many as 10 lawyers to be involved in the required court applications,” he explains. “The pride in size that you see reflects an underlying pride in their ability to respond on short notice to something large and complex.”

Most of the boutiques started with modest numbers of lawyers and gradually grew to have bench strength around the 20s and 30s. Pink Breen Larkin in Halifax and Fredericton, which assists trade unions in representing their members, started with four lawyers in 1989 and has gradually grown to 16 lawyers. Emond Harnden LLP in Ottawa is up to 19 and Filion Wakely Thorup Angeletti LLP is celebrating its 25th anniversary with over 30 lawyers in their Toronto and London, Ont., offices.

Roper Greyell LLP of Vancouver deliberately built up its size through a July 2006 merger with the B.C. labour practice from Ogilvy Renault. “There were a thousand reasons why we did it,” says Duncan MacPhail, the managing partner of the new group. “The resulting group [of 20 lawyers] is attractive to clients with large and sophisticated files. It gives us an enhanced competitive position because we have a broader pool of legal talent and more depth.”

Murray McGown of McGown Johnson in Calgary suspects most firms that represent the management community are breakaways from big firms, while firms that represent employees and trade unions develop more organically. Strangely, in contrast to this observation, McGown Johnson is an employee-side firm that formed when a larger firm disintegrated in 1982.

McGown and his partner have deliberately chosen to remain near their initial roster of two or three lawyers. “We have hired a very professional office manager, the sort you would find in a big firm, who gives us cost and organizational advantages. We want to be a small but highly mobile niche player. It works for us.”

Another small boutique with a high profile is Ball & Alexander in Toronto. They are limited not just by their philosophy but by their location in a red brick house in the tony Yorkville area inspired by law firm headquarters in Montreal and Victoria. “Our overhead costs are fixed and indeed shrinking because we own the building,” says Stacey Ball. The part of the house that is not taken up by Ball and his partner Ken Alexander accommodates other labour lawyers who can be called on to boost the ranks when a complex matter requires it.

Ball & Alexander is one of the rare firms that represents both employers and employees, among them law firms and individual lawyers. “To be a good lawyer and a good litigator, you have to have a sense of empathy,” says Ball. “By that I mean understanding how the other side views things so you can anticipate what they will do. It makes you a better chess player.”

On the labour law side, which involves trade union work, it is extremely unusual to move between the management and employee side of the table. “It would be a very rare labour lawyer who would be acceptable to both sides,” says Harris. “It’s not like criminal law, where the client meets the lawyer on one occasion and doesn’t represent who he or she represents afterwards. We represent the client regularly over a period of time.”

Pink puts it more bluntly. “You can’t be beating up on trade unions one day and representing them the next. It doesn’t go with the culture.”

Andrew Tremayne, the managing partner at Emond Harnden, talks about the problem of setting a precedent on the employee side that comes back to haunt your management clients, and vice versa. “We want to give expert advice, not on the basis that you do your best today, but when you close the file all bets are off. It is a very relationship-driven business, as opposed to transactional.”

Apart from choosing the side they will represent, L & E boutiques like to distinguish themselves from their competition in other ways. Ball and Alexander point to their publishing history (Ball is the author of Canadian Employment Law) and the important cases they were involved during their early years, such as the Wallace v. United Grain Growers decision. Emond Harnden thinks its bilingual abilities put it in a place of its own and is also very proud of its full-time research group. Hicks Morley highlights the advantages it gains from its branch offices in Kitchener, Ottawa, Kingston and London. “That was a client-driven initiative,” says Shamie. “There is a lot of pressure from clients to move into their geographic area so that we can meet face-to-face, be responsive and available. It also cuts down on the client paying for travel costs.”

All the lawyers interviewed agree that the most important aspect of their reputation is their focus on one area. MacPhail is confident that when the Roper Greyell Frisbee goes whizzing by, the name instantly conveys one meaning to all who read it: labour and employment law. On the other side of the country, L & E boutiques are milking the same cow. “It permeates the whole firm,” says Pink of their reputation for expert advice, “so when a junior goes in to a court or tribunal and says, ‘I’m from Pink Breen Larkin,’ they know he knows what he’s talking about.”

Even though the boutiques confine themselves to playing one tune, it does not mean that there is only one string in the bow. L & E is a specialty with many specialties within it, many fairly new and all rapidly changing. “If you look at labour law firms in Canada and the U.S., the underlying denominator is dealing with people in the workplace,” says Harris.

He points to Littler Mendelson, which, with over 500 labour lawyers, is the largest specialty firm in the U.S. “Certain lawyers call themselves traditional labour lawyers, administrative lawyers, human rights lawyers, or litigation avoidance lawyers. Our new and growing areas are business immigration, where clients are trying to attract people from other jurisdictions, and privacy law — a narrow specialty that has developed in only the last few years. The common theme is the new rights that employees have.”

Hicks Morley began practising exclusively in labour and employment, and later added education, workers safety and insurance, pay equity, occupational health and safety, human rights, and pension and benefits. With nine full-time lawyers in the pensions section, it is the fastest-growing area in the firm, along with employment litigation. Pink Breen Larkin has branched out even further. It considers environmental and municipal law to be complimentary areas, since it is already the representative for many advocacy groups.

All the boutiques know the importance of having proactive, long-term relationships with their clients. They are involved in strategic long-term planning, advising on the labour and employment implications of proposed strategies, as well as troubleshooting as events occur. “One of the things we do is partner with clients,” says Shamie. “We try to give them advice that is very practical. Clients don’t ask questions because they are interested in the law. They need answers to problems.”

A common source of work, beyond the word of mouth of people in trouble, comes from law firms that don’t have their own L & E department. “They know we won’t try to mow their lawn,” says Tremayne. “We can be their virtual in-house department.” He believes an informal system of networks works well. “Individual lawyers have their own links and relationships.”

Some firms have entered into more formal arrangements. Davies Ward Phillips & Vineberg LLP has chosen not to have a labour department and its partners often refer work to Hicks Morley. They, in turn, entered into a formal affiliation with Harris & Company in Vancouver, which has proved very successful since its inception a year ago. “They are our counterpart in B.C.,” says Shamie. “They do exactly what we do. It’s a very good fit.”

Harris concurs. “We only work in B.C., Alberta, and the Yukon, so it gives us a perspective on what’s happening in Eastern Canada.” A concrete example of inter-firm knowledge sharing occurred in June, when Shamie travelled to Vancouver to speak to 500 of Harris & Company’s clients about mandatory retirement.

“Ontario is two years ahead in the development of mandatory retirement than we are,” says Harris. “It was useful to hear from someone with more practical experience.” Harris & Company also belongs to the Employment Lawyers association (ELA), which provides them with referral opportunities in the U.S.

In line with the idea that bigger boutiques are better in this area of the law, most firms are aggressively interested in attracting good young lawyers. MacPhail believes the boutique structure gives an extra benefit in terms of work-life balance, an important recruiting asset. “Frankly, it gives us the opportunity to set in motion policies that attend to the work-life balance. New lawyers are our lifeblood, so we try and offer challenging professional work in a balanced environment that doesn’t sacrifice profitability.”

Management-side firms don’t always find it easy to attract the best and brightest. “There are not a large percentage who want to commit themselves to management-side labour law straight out of law school,” says Roy Filion, managing partner of Filion Wakely. “If they do, it’s often because their family background gives them a philosophical commitment to the challenges that management faces.”

When asked if his union-side firm has trouble attracting young lawyers, Pink says cheerfully, “Not any more. We have seven lawyers of three years’ experience and under. The practice attracts those who want to make a difference in ordinary people’s lives on a day-to-day basis, of which there is no shortage, thank heavens.”

While there may not be enough young lawyers to go around, there seems to be no shortage of clients. “It’s a beautiful thing, there’s enough work for everyone,” says Tremayne. “Business is steady. It doesn’t have peaks and valleys. Lawyers love this area and our size is ideal for clients big and small.”

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